This file contains archived live captions of the open meeting of the Federal Election Commission held on April 08, 2021. This file is not a transcript of the meeting, and it has not been reviewed for accuracy or approved by the Federal Election Commission.


>> Good morning, open meeting  of the Federal election commission  will come  to order. We have some late cemented  documents this morning, Mr.  vice  chair? Thank you for I  moved to suspend the rules on timely  submission in order the commission  may consider the late submission  of docket number 21 -- 20  -- A1.  

Thank you for the vice chair  is so move. Any discussion on  the motion? Hearing on, although  severer please say  I.  

Motion has been adopted  by six. Thank you  very much. I  would like to announce prior to  we start the agenda  item number three proposed amendment  to directive 17 will be held over  to a feature of the meeting. The  first item we will consider on the  agenda is advisory opinion  of 2021-four, submitted by  Michael Lynn. We are  joined by the chief financial officer  for available responding  to questions.  Welcome. We also have Kevin Paulson  and Amy Rothstein here to discuss  the matter.  Would you like to present?  

Thank you. Good morning. Before  you are on  agenda  month documents, which respond to  requests from the requester pray.com  a for-profit operation with mobile  app and website that provide users  with faith-based content. The request  asks whether  pray.com's proposal deposed A/V  statements for members of Congress  on his platforms would  result in corporations which  would otherwise contribute contribute  is.  

Acting commission regulate would  not prohibit the requester from  post in the content as proposed.  Activity would not result  in indications or otherwise provide  limited in-kind contribution to  participating members were also  candidates for  federal office. We did not receive  any comments on the requests. We  received one comment on draft day  from the campaign legal Center I  would be happy to address any questions  you have.  

Thank you. Is there  any discussion  or questions? 
     

Since we have representatives  from the requester here, the revised  draft was submitted only yesterday,  I would be interested if  Mr. Lynn has any comments or  anything he wanted to say with regard  to the true two drafts we  are  considering.  

I don't have any additional comments.  I can answer any questions, provide  more information of who we are if  needed.  

 Thank you. 
     

I wonder if Mr. Lynn has no preference  between the  two drafts?  

I think the most recent which  I read thoroughly could be  the one that would be  in line.  

Thank  you. Any  further questions? I want to make sure since the video  is not able for one of our commissioners,  did you have any questions for the  requester or  General Counsel?  

At this time I don't.  

 Thank you. If there are no  further questions, is there a  motion?  

IMovie adoption  of revised.  

Is there discussion on this  motion? Seeing none, I will call  the question although severer, please  say  aye.  Thank you.  I believe I heard six, it's  a little difficult but I cannot  see faces. I  apologize if I am misstating. The  motion passes-zero. They had to  call the names, we  have the vice chair,  Commissioner Shaner , all voting in favor and thank  you to the requester for peering  today.  

Thank you and thank you to the  commission.  

The  next item we have is the resubmission  of proposed modification to program  for requesting consideration of  legal questions by  the commission. We have the  compliance office and others from  OCC to discuss the matter. I would  now offer them to like to proceed.  

Thank you. Before  the commission is  a document 21-18  -- ace committed by the office of  General Counsel and compliance.  Proposing changes to the commission  policy statements program for  requesting consideration of legal  questions by the commission.  The program allows committees to  ask the commission to decide one  or more questions of law that may  be raised when either the report  analysis division or audit division  determines the committee must take  corrective action. If two or more commissioners agreed  to consider the request, the office  of General Counsel may take up to  five business days to attempt at  its discretion to resolve the substance  of the request informally with the  committee. At this attempt is not  successful or  not made, they submit a memorandum  to the commission that describes,  analyzes and makes  a recommendation on the issue or  issues presented in  the requests. If the commission does not resolve  the request within 60 business days  of the filing of the request, the  office of compliance may proceed  with the matter. The program provides  for an annual review of  its operation and an opportunity  to propose modifications based on  that annual review. This memorandum  proposes two modifications to the  program. First, memorandum proposes  the five business day informal resolution  period begin immediately after the  commission receives the request,  instead of as is currently the case  after two or more commissioners  agreed to consider the request.  Second, the  memorandum proposes 60 business  day period of time given to the  commission to resolve the request  for the office  of compliance receives, be suspended  in cases in which event beyond the  commission's control occurs that  disables the commission from deliberating  on the request. Examples of such  events might include a natural disaster,  government shutdown, or the loss  of a quorum. Was the disabling  event ends, the commission 60 business  day period was resume at the point  it was interrupted. In  special circumstances, the commission  could grant itself up to an additional  20 business days to consider the  matter. I would be happy to answer  any questions.  

Thank you. Are  there any questions  or discussion? 
     

Thank you for the presentation.  I have a question as relates  to the second recommendation in  the 60 day clock change for the  resolution of  legal questions. Under the proposal,  what would the effect be on an  audit if one of the intervening  events like a lack of quorum, institutional  lack of quorum were to  take place during the pendency of  the 60 days  to reveal where I'm going, one of  my concerns would be, it would potentially  effectively freeze the audit process,  if  we were to get one of these legal  questions during a lack of quorum  in there were  no way to move forward with the  audit until a quorum were restored.  

 Yes. Language as currently proposed  would, in effect, halt the audit  process if request is pending during  the 16 business day period of time.  The audit division would need to  weigh the guidance of  the commission on the question or  questions presented in order to  proceed.  

Do you have  any concern about what incentives  that might create for potential  gamesmanship or  audit subjects who are looking to  pause their audits if  we were seeing a prolonged  period mentioned? I have not  considered  that. I  would defer to my superiors if they  have any thoughts about  that.  

 

If there was an event that would  stop the commission from proceeding,  that could occur at any point. If  we were  at the final report stage and there  was a lack of  a quorum, they couldn't vote anyway  so that could happen at any  point.  

 If there was a snow event that close  the commission for we, that would  happen at any  point.  >> 
     

Are there any  further questions? Could you explain  to me what the position of the  commission was before we adopted  our current procedure and how that  previous procedure relates to this  procedure  being recommended?  

Yes. Are you talk about the informal  resolution process?  

Yes. There was  no formal process for informal resolution  in the procedure. We proposed in  the previous modification memorandum  to add the informal process because  we had  an audit that we were working on  it which we  were able to we discover there was  a simple resolution even though  the committee  had requested formally reconsideration.  There was essentially agreed with  the committees decision on the  merits and we were able to instruct  the audit division to move  or recommend  the finding from the  audit report. Even though there  was no  formalized process, we were able  to, sat with that atheist audit  and that engendered some  reflection  because without's the five  business days  specifically dedicated to the informal  resolution process, it was incumbent  upon us to use 15 business  days provided in the program  to generate the recommendation memorandum.  We had to use part of that time  in order to explore  and eventually effectuate an informal  resolution with the committee. Rather  than a oblige the office  to choose, a  rather limited 15 business day period  of time to pursue low solution  or draft recommendation, we suggested  that it dedicate a specific period  of  time before the recommendation memorandum  period began within which we could  explore informal  resolution. That is basically the  genesis of the informal resolution  aspect of the  program.  >>.  My concern with starting immediately  as opposed  to once two commissioners have considered  it, are the majority of the  legal issues fully vetted  such that those being audited would  already have an idea of what  the legal questions might be so  those discussions could start  immediately versus after two  commissioners said they had an interest  in it?  

Currently come under the program,  the auditors present the committee  within exit conference at which  they detail all of the  proposed findings in the first draft  of the audit report. The committee  are apprised of that and they have  a period of time within which  to consider whether they formulate  we will  legal objections. That's  already part of the  current process.  Thank  you.  

Any  further questions? I guess a  couple of questions about the timeline.  Am I correct that we would be adding  five days to the timeline that exists  here. This wouldn't come out of  the 15 days as required for  evaluation.  

This proposed publication  transposes the five business day  time from its original location  to an earlier point in  the process. If the modification  were affected, the five business  day resolution period would begin  immediately after the commission  receives the request rest under  the current program, the  informer solution period  begins after at least two commissioners  agreed to consider the request.  

Understood. Thank you.  You mentioned there's a period of  time between the  exit conference in the  dropdead date when one would have  to decide to request the legal review  by the commission.  How often is  there surprise the question is being  asked? Do you engage  in discussions about  these legal questions during that  reflective period?  

That  can vary. Sometimes the committee  informs us at  the exit conference that it has  a legal concern. About one  or more of the findings presented  and then we are apprised of it well  in advance of the filing. It's not  incumbent upon  the committee to disclose to us  in advance that will be filing a  request for  legal consideration. We could receive  a request and without  knowing in advance that the committee  had an issue. Once a request  is filed, at least under this  process, we would have a certain  amount of business days  to explore the issue.  

I understand. I'm asking about  a factual question.  How often are you surprised by these  requests for legal review?  And  relatedly, with this five day period  essentially be redundant of that  weighting period in  most cases or some cases are all  cases, what do the buckets look  like?  

I don't have a sense of  the landscape  of request for legal consideration  to  be able to say  how often  we are surprise as opposed to how  often we know in  advance. Again, I  would defer to my superiors if they  have more experience with the program,  they would be able to comment on  that.  >> If I had to make a call, I  would say we are not surprised.  Usually comes up to a conference  that committee has some legal point  they want to make. We are usually  not surprised because  the auditors and  General Counsel commie times the  committee will just say they have  a problem they want to file a request  and in fact they  are looking for Canada on the 15  days we would receive. If I had  to make the call, I don't think  we are surprised by  it.  

Which you agree in most cases,  those 15 days are available for  this sort of  in discussion?  

The 15 days for  memorandum?  

I may have my time I brought.  After the exit conference is a period  of time, you just told me in most  cases you  would know I'll spot a couple days  after that there will be some sort  of concern. I presume you take advantage  of  the time before the committee files  a formal request to discuss the  merits of that request.  In cases  

That depends. I would say  no. To say what the committee says.  I don't know what they will argue.  I wouldn't want to put the resources  in  the play and not know what the committees  are arguing or if they will argue  at all. They may not file a request.  I would definitely wait to see what  they do.  

There haven't been cases where  items have  come off the list of violations as a result  of discussions happening at the  exit conference? It's our practice  to wait until there's a normal request  from the commission.  

Yes. Think, that's helpful.  

 Thank you. I would  like to see that you indicated you  would like  to speak.  

I wasn't going to  say, during that 10 day response  period the committees have, there's  often some back and forth between  the committees and the audit  staff where they field questions  and we provide responses and we  remind them of their opportunity  to provide a legal request. I would  agree, it's not often we are taken  aback and surprised that a request  is  received.  

Other any  other questions? 
     

We haven't had a chance to look  at documents in the last couple  of days. What problem is said to  be solved banishing this? Has it  been  a problem  to remedy? To  initiate this? And then  to have a  five day, what has happened to justify  seeking  this?  

 Madam chair? With respect to the first proposal,  regarding transposing the five business  day informal resolution  period --  I'm sorry? With respect to transposing the  five disc's estate period, we  did encounter one situation in the  preceding year regarding an  audit where we perceive  the possibility of expedient  informal  resolution  presented. However, we could not  effectuate that  resolution because to a more have not agreed to take  up the request. Our  feeling is informal resolution process  has  been helpful in promoting efficiency  and obviating the need for formal  commission consideration of questions.  This transposition would  enable us to address a situation  like the specific audit that occurred  in the preceding year  that motivated the recommendation.  We would be able to potentially  expand the efficient use of resources.  With respect to the second issue,  during the time the extended period  of time of the commission lacked  a quorum,  in some exit conferences conducted with  committees, we were questioned by  committee representatives as to  the propriety of filing  a request for legal consideration  during that time and what  would happen to a request for legal  consideration occurring in the midst  of an event such  as that. We realize there  is a latent ambiguity  in the language of the program as  it's currently worded  that if 60 business days elapses,  then the commission the office  of compliance has discretion  to proceed.  We considered perhaps the commission  would not wish to be divested of  the opportunity to deliberate  on the pending request for consideration  of one or more legal issues reason  of events or circumstances that  occur beyond the commission's control  and perhaps it would be appropriate  to add that clarification to the  current language. Those are  the considerations that motivated  proposals.  >> Chris know how  is decided that two would be selected  and who would do the selecting and  how had that  occurred?  

Who would do the selecting in  terms of selecting for  informal resolution? I think it  was two lawyers  involved. How would they  be involved? Does it come from the  office of General Counsel?  

The decision currently,  this would remain  the same under modification, whether  to engage in informal resolution  or to pursue  with the committee would be at the  office of General Counsel discretion.  The office of General Counsel  would initiate such an attempted  may decide in his discretion not  to try  informal resolution. 
     Thank  you.  

 

What is to prevent a committee  from simply withdrawing its request  for legal consideration? Assuming  there is a discussion,  the GC agrees or  whomever decide the objection raised  at the meeting is correct, it's  the desire to withdraw the objective  to analysis.  Why would there need to be this  five day set  aside? Could they say nevermind,  I don't need the commission to look  at  this?  >> The five business day informal  resolution period could results  in the withdrawal and  it has in the past, it has resulted  in withdrawal of  legal requests for consideration  by  the committee. I don't know that  is responsive to  your question.  

It is. Trying to understand the  scenario  in which is presented, I'm very  open to correction. There have been  times were an objection was raised  in meetings below the commission  level. All parties have agreed that  the objection  is sound. Instead of simply  moving forward on  that basis I think your words are  your been unable to effectuate that  because of a pending legal issue  with standing in front of  the commission. Try to match the  scenario with where they would simply  not withdraw the legal request and  be back where  we started.  What actual problem is that  solving?  >> 

[ Indiscernible - audio issues  ]  

 Comissioner Steven Walther,  I believe  you're on two devices  must  disconnect one.  

We are checking on him right  now.  >> Going to move to the waiting room  to see if that makes a difference.  

Thank you. While we do that,  I apologize for the inconvenience.  We will take a five minute recess  to make sure we have Comissioner  Steven Walther  back.  
     

Madam chair, we have resumed  recording in  our live event is proceeding.  

We are resuming the open meeting  for Thursday,  April 8th. We were having  a few  technical difficulties which have  been solved. I want to thank the  staff of that. Stippling was in  the midst of answering a question  on behalf of Commissioner Comissioner  Steven Walther.  We can also have  the video. If you can resume  answering the question.  

Thank you. I believe the  essence of the question posed by  the vice chair before the  recess was why not if everyone is  in agreement, the  objection posed is sound. Why  can't  everyone agree why can't the committee withdraw  the request or why would they be  precluded from withdrawing the request.  I had indicated in my  response that the reason for proposing  the transposition of  the informal  resolution period,  in that case, I don't know if the  vice chair is thinking about that  case and that's why I am alluding  to a. That was the case under the  current regime or we were  precluded from pursuing the informal  resolution for may have been able  to agree to because of the procedural  requirements the commission take  of the matter with two or more affirmative  Commissioner votes and  because that procedural requirement  was not fulfilled, we were  not able to pursue that with  the committee and that was the  reason motivating the  proposal here. I don't know that  responsive to the question or  not.  

 

I agree it is responsive. Leaves  me a  little confused. I guess I would  just stated again. Given the ability  of the requester to withdraw  their legal objection,  what prevents  informal resolution under the  current regime? If the committee  withdraws its request, the program  would no  longer be  in operation. 
     

The thing about it, the commission  has  to action actually vote  on a.  We have to vote first and then go  into  informal resolution. Heather been  no indication there at least two  interested in the question, why  are we doing informal resolution?  Or be no reason to do informal resolution.  We don't have the interest  of the commission. That is the  current process. The commission  and then informal  resolution.  

 

 I think, the reason would be because  all parties in the  committee agree on what the legal  answer is there's no reason to involve  the commission. Let  me put it differently. Now there  will be  five days. Where we will not have  taken a vote or review the objection.  Oji C will, in  his discretion talk with the  committee. I can imagine  that going one of two ways. Either  Oji C agrees which case I am  confused why the committee will  simply withdraw  its objection and everyone go about  their lives or Oji C will disagree  with the committee in which case  all we are doing is creating five  days to talk them out of their position  before the commission reviews the  issue. I don't understand  which prong of that dilemma requires  this change? Or what it will concretely  do that would  be helpful? 
     

Maybe we are defining it too  narrowly. It's not always a discussion  between Oji C in the committee.  It's a discussion between  Oji C and the  committee  and audit. We didn't have the process  before, we try to do it informally  but it was a discussion with the  audit division, a clarification  on what this  finding involves. Once we figure  out what was going on, it was easy  to resolve. We say auditors come  all you have to do is change it  like this. Than  the committee understood what they  were talking about and everyone's  happy  and agree.  That was before we had the process  of informal resolution so we asked  the commission, let's formalize  this process of having an informal  resolution process when we put it  in, we require the commission to  first and then we did informal resolution.  In the case Josh was talking about  were we thought if we  spoke to the committee, we could  have resolved  it easily. The commission had  not voted or voted to consider and  that was the process at that time.  That's why we didn't do anything.  If we talked, we could  have resulted. The way we had set  it up, we couldn't top that because  the process happened after the  commission voted. I want  to pick up the phone and call the  committee and easily resolve this  but that's not the way the process  is  set up. What prevented  OGC ? You are having meetings with  folks, you're in communications  with them, but portion of the  existing directive prevents you  from continuing those conversations  while the  commission considers the  legal appeal? I will leave it  at this because I know we are going  late. I remain really confused on  why this can't.  

Base set up and  they talk to formally resolve it  until after the committee vote.  I think we are on the same point.  I want to do what you're talking  about. The current process set it  up such that I had to wait until  the commission side wanted to consider  it.  

I would love to do what you are  talking about. I thought I couldn't  because the commission had a devoted.'s  boat first and then  informal resolution. What you are  talking about is exactly what we  want  to do. We just thought all we had  to do was shift to an earlier process  to take care of it  early.  

Can you point me to  language that prevents you from  talking to the other side while  the commission is considering  whether to  bring it to the  commissioners?  

Thank you.  Under the  current process, within five business days of notification,  I am reading from the current Federal  Register notice. Within five business  days  of notification of requester consideration  of the legal question, if two or  more commissioners agree the commission  should consider the request, ODC  may at that time attempt to resolve  the matter informally over the course  of five  business days. Within 15 business  days from the date  upon which the office  of compliance and general counsel  concluded the matter cannot be resolved  informally, or  from the expiration of  the five business day period, OGC  will prepare and circulate a recommendation.  I think that is the  pertinent language.  

That answers my question. I think  we're just reading it differently.  Thank  you.  

Are there any  further questions? Let me ask,  is there emotion?  

I have a question.  

I'll try to make  this  short. I'm  wondering how the commissioners  sit in on this? Who  selects them?  Is there a method to help resolve  the matter and when does that come  into play? Is reconciliation process? It  seems like there would be a step  that.  

If I may ask, when you refer  to the selection of two people,  are you referring to the  part of the process were to a more  commissioners agree to consider  the request?  

 Yes. You go with the problem, is  there any record  of  that?  

 With respect, to the part of the  process where the  commissioners decide whether to  consider a request in the first  instance, we at OGC don't speak  with  commissioners, Sibley presented  to all of the commissioners when  the request is received in if two  or more commissioners decide they  wish to consider the request, they  can  do so. OGC plays no role apart from  forwarding the request to the commissioners  for  their deliberation. 
     

And then they meet and make  a decision and hopefully everyone  abides by  it?  

The tool more simply indicate  we usually forward it electronically  and into a more indicate to  us informally they would like to  consider the request.  It's formally accepted for consideration.  

I would like  to interrupt your line of questioning,  we have another commission  Commissioner.  

I think is a little bit of confusion  about the  process. If, is not one of these processes that  is lost in the sands of time. This  is something we started about a  decade ago. After one particular  audit where  the committee was frustrated they  didn't have a method of raising  a legal question before  the commission that could have resolved  issues earlier, and had to wait  until the end of the process. We  all agree that was not  very efficient. We created a process  which is in  some respect for probable  cause hearings. If the committee  wants to raise a question to the  commission, it will be presented  to the entire commission. If any  two agree they  think this is worth considering,  they don't decide  the issue. Then the question is  presented to the entire commission  to decide. There any two commissioners that  can weigh in on the front end and  say this is worthy of commission  consideration but they're not the  ones who will decide the issue.  It's always presented to the  entire commission.  Thank you. Are there for the questions  office of  General Counsel? If  not, I will ask is  there  emotion? 
     

I have no idea whether this motion  is going to succeed or not. Will  be interesting  to see. It sounds like having listened  to the discussion, everybody wants  to get to the  same place. Which  would allow our staff to try and  informally resolve these matters  in advance of the commission having  to devote its time to considering  it's and in advance of the committee  having to put in as much work on  the request. This seems to be some  disagreement amongst  some commissioners and staff as  to whether they can do that now.  If this doesn't work, maybe we could  work on other language that  may clarify that. It seems like  it's generally a good idea to allow  for that kind of informal resolution.  In hopes that maybe this would  do it, I will move approval of  agenda  document 21-18-a, a proposed modification  to the program for requesting consideration  of legal questions by  the commission.  

Thank you. Is  there discussion on  this motion? 
     

I don't plan to support the motion.  I want to  be clear, it's because I do  read the existing policy differently  and I do not see what is  preventing OGC from resolving these  matters in favor of the  committee  in those instances where  there is agreement as to what the  legal standard  should be. I want to put that on  the record and you can consider  the language with or without my  opinion. That is where I am  coming from.  

While I will support my  own motion, if there is a way we  could resolve this  by general commission direction  to the staff that they can read  the current policy to allow for  that, I am fine with that  interpretation also.  >> I will  call the question, all those in  favor please say aye.   

Opposed, please  say no.  

At the motion fails with two  voting in favor and four  voting against. Are there any  further motions? Take you very  much. Thank you to the office of  General Counsel, will move onto  the next item of the agenda. The  next item, we have announced there's  a holdover proposed to direct  the 17. Will move onto  the draft statement of policy regarding  closing the file of the initial  stage in the enforcement process.  Let me ask if there is a  presentation of  this one? 
     

Since this was a  commission proposal,  OGC does not  have a presentation prepared.  

Thank you.   

I don't know if this would be  in order but I'm looking at the  clock. I think this matter deserves  deliberation and we will likely  be able to give  it on  empty stomachs. It would be in order  I would ask this be held over until  our next meeting.  

Thank you.  Agreeing with the empty stomach  portion of that, we will hold this  matter over until the next open  meeting. Let me turn to  the question to our staff director.  Are there any management or administrator  matters we need to discuss today.  

There are no  such matters. Thank you. This meeting  stands adjourned.  

[ Event  Concluded ]